Do fingerprints for European Arrest Warrants need to be taken by a constable?

01 July 2020

Not reviewed after the date of publication

Question:

Fingerprints are often taken of detainees by custody staff (detention officers), however it appears these must be taken by a constable for European Arrest Warrants.

Please can you confirm whether this is the case?

Answer: 

Section 166 of the Extradition Act 2003 applies if a person is arrested under an extradition arrest power and detained at a police station. It gives a police constable the power to take fingerprints and non-intimate samples, only if the person has given his written consent, or if they have the appropriate authorisation from at least the rank of Inspector. It provides:

'166(1) This section applies if a person has been arrested under an extradition arrest power and is detained at a police station.

166(2) Fingerprints may be taken from the person only if they are taken by a constable –

(a) with the appropriate consent given in writing, or
(b) without that consent, under subsection (4) (below).


166(4) Fingerprints or a non-intimate sample may be taken from the person without the appropriate consent only if a police officer of at least the rank of inspector authorises the fingerprints or sample to be taken.'

Therefore, the legislation is clear, the power is only available to a constable; please see the Extradition Code of Practice (Code D) - identification by fingerprints and samples for further guidance.

However, we are of the opinion that this is a power that may be conferred on a Detention Officer. Section 38 of the Police Reform Act 2002 provides for the designation of powers by the chief officer or any police force. Apart from the powers and duties listed in Schedule 3B, any power or duty of a constable may be conferred or imposed on a person designated under section 38; however limitations may be placed on such powers – see subsections (6B) to (6F), (7A), (9A) and (9B) of section 38 for details.

Whether or not civilian staff can use these powers in your particular force will depend upon what designations have been made; unfortunately this isn't something that we are able to confirm. Following changes made to the Police Reform Act 2002 by the Policing and Crime Act, it is now the decision of the chief officer of each police force to decide which powers they designate/confer upon such staff. We would therefore recommend that you speak with your supervisor / chief officer in order to obtain confirmation of which powers are available to the civilian staff in your area.

If this power is not currently available to the Detention Officers, we would advise that you make representations to your chief officer in order for designations to be made which may assist in eradicating your problem with fingerprinting for European Arrest Warrants.

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